The government communicates only the 'eviction' — hiding the award in the same decision. The Council of State breaks through this formalism.
The Council of State rejects the Belgian State's inadmissibility objection: a rejected tenderer who challenges only the 'eviction letter' procedurally attacks the entire award decision contained within it — even if the award itself was never formally communicated.
What happened?
The Belgian Foreign Affairs Ministry launched a negotiated procedure without prior publication for the renovation of the kitchen at the Belgian NATO delegation residence (estimated €65,000 excl. VAT). Seven firms were invited; three submitted offers. On 28 November 2018 a single reasoned decision was taken: Devillers was awarded the contract at €75,582.27 incl. 6% VAT; Master 33 was excluded for not providing the required site visit certificate. Master 33 received only an extract concerning its own exclusion on 8 January 2019 and filed an annulment action on 8 March 2019. Nearly five years later, the State argued Master 33 had no standing because it had not formally challenged the award to Devillers. The Council rejected this: the challenged act is a single global decision — exclusion and award in one document. Requiring the applicant to separately designate the award part would be excessive formalism, especially since the applicant only ever received the exclusion extract. The 2005 case law cited by the State concerned two separate successive decisions, not one global act. Article 14 of the 17 June 2013 Act requires only interest in obtaining the contract and actual or potential prejudice — both satisfied. Debates reopened; further auditor's report ordered.
Why does this matter?
Contracting authorities often take a single global award decision but communicate only the part concerning each tenderer. This creates a formal ambiguity about what exactly has been challenged. The ruling clarifies that the Council looks through this split communication: attacking the eviction letter procedurally attacks the full decision, including the award to a competitor. Conversely, authorities gain no procedural advantage from fragmenting their communications.
The lesson
If you are excluded via a letter containing only your own grounds but you suspect a concurrent award to a competitor: frame your appeal against 'the decision of [date]' rather than limiting yourself to 'the exclusion decision'. That covers the award automatically. For contracting authorities: do not rely on split communication to strip an excluded tenderer of standing. The Council examines the underlying act, not the envelope.
Ask yourself
Were you excluded via a letter mentioning only 'non-selection' without a formal award notification? It is likely there is one global decision to challenge — request the administrative file and verify whether the award to a competitor is contained in the same document. You do not need to name it separately in your petition to preserve standing.
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →